Guest Essayist: Dan Morenoff

It took almost a century for Congress, and President Lyndon B. Johnson, a Democrat from Texas, to enact the Civil Rights Act of 1964, putting America back on the side of defending the equality before the law of all U.S. Citizens. That act formally made segregation illegal. It legally required states to stop applying facially neutral election laws differently, depending on the race of the citizen trying to register and vote. If the Civil Rights Act of 1957 had raised expectations by showing what was now possible, the Civil Rights Act of 1964 again dramatically raised expectations to actual equal treatment by governments.

But the defenders of segregation were not yet done. They continued to pursue the “massive resistance” to integration that emerged in the year between Brown I and Brown II.[1] They continued to refuse to register black voters, to use “literacy” tests (which tested esoteric knowledge, rather than literacy) only to deny black citizens the chance to register, and to murder those who didn’t get the message.

Jimmie Lee Jackson was one such victim of last-ditch defiance. In February 1965, Jackson, an Alabamian church deacon, led a demonstration in favor of voting rights in his hometown of Marion, Alabama; as he did so, state troopers beat him to death. The Southern Christian Leadership Conference (in apparent coordination with the White House) responded by organizing a far larger march for voting rights, one that would cover the 54 miles from Selma, Alabama to the capitol in Montgomery. On March 7, 1965, that march reached the Edmund Pettis Bridge in Selma, where national and international television cameras captured (and broadcast into living rooms everywhere) Alabama state troopers gassing and beating unarmed demonstrators.  When the SCLC committed to continuing the march, others flocked to join them. Two days later, as a federal court considered enjoining further state action against the demonstrators, a mob lynched James Reeb, a Unitarian minister from Boston who had flown in for that purpose.

Johnson Returns to Congress

Less than a week later, President Johnson had called Congress into a special session and began it with a nationally televised Presidential address to a Joint Session.[2] Urging “every member of both parties, Americans of all religions and of all colors, from every section of this country” to join him in working “for the dignity of man and the destiny of democracy,” President Johnson, the heavily accented man-of-the-South that Senator Richard Russell, a Democrat from Georgia, once had connived to get into the Presidency, compared the historical “turning point” confronting the nation to other moments “in man’s unending search for freedom” including the battles of “Lexington and Concord” and the surrender at “Appomattox.” President Johnson defined the task before Congress as a “mission” that was “at once the oldest and the most basic of this country: to right wrong, to do justice, to serve man.” The President identified the core issue – that “of equal rights for American Negroes” – as one that “lay bare the secret heart of America itself[,]” a “challenge, not to our growth or abundance, or our welfare or our security, but rather to the values, and the purposes, and the meaning of our beloved nation.”

He said more. President Johnson recognized that “[t]here is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. And we are met here tonight as Americans — not as Democrats or Republicans. We are met here as Americans to solve that problem.”  And still more:

“This was the first nation in the history of the world to be founded with a purpose. The great phrases of that purpose still sound in every American heart, North and South: ‘All men are created equal,’ ‘government by consent of the governed,’ ‘give me liberty or give me death.’ Well, those are not just clever words, or those are not just empty theories. In their name Americans have fought and died for two centuries, and tonight around the world they stand there as guardians of our liberty, risking their lives.

“Those words are a promise to every citizen that he shall share in the dignity of man. This dignity cannot be found in a man’s possessions; it cannot be found in his power, or in his position.  It really rests on his right to be treated as a man equal in opportunity to all others. It says that he shall share in freedom, he shall choose his leaders, educate his children, provide for his family according to his ability and his merits as a human being. To apply any other test – to deny a man his hopes because of his color, or race, or his religion, or the place of his birth is not only to do injustice, it is to deny America and to dishonor the dead who gave their lives for American freedom.

“Every American citizen must have an equal right to vote.

“There is no reason which can excuse the denial of that right.  There is no duty which weighs more heavily on us than the duty we have to ensure that right.

“Yet the harsh fact is that in many places in this country men and women are kept from voting simply because they are Negroes. Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application, he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of State law. And even a college degree cannot be used to prove that he can read and write.

“For the fact is that the only way to pass these barriers is to show a white skin. Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books – and I have helped to put three of them there – can ensure the right to vote when local officials are determined to deny it. In such a case our duty must be clear to all of us. The Constitution says that no person shall be kept from voting because of his race or his color. We have all sworn an oath before God to support and to defend that Constitution. We must now act in obedience to that oath.

“We cannot, we must not, refuse to protect the right of every American to vote in every election that he may desire to participate in. And we ought not, and we cannot, and we must not wait another eight months before we get a bill. We have already waited a hundred years and more, and the time for waiting is gone.

“But even if we pass this bill, the battle will not be over. What happened in Selma is part of a far larger movement which reaches into every section and State of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too.  Because it’s not just Negroes, but really it’s all of us, who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.

“The real hero of this struggle is the American Negro. His actions and protests, his courage to risk safety and even to risk his life, have awakened the conscience of this nation. His demonstrations have been designed to call attention to injustice, designed to provoke change, designed to stir reform.  He has called upon us to make good the promise of America.  And who among us can say that we would have made the same progress were it not for his persistent bravery, and his faith in American democracy.

“For at the real heart of [the] battle for equality is a deep[-]seated belief in the democratic process. Equality depends not on the force of arms or tear gas but depends upon the force of moral right; not on recourse to violence but on respect for law and order.

“And there have been many pressures upon your President and there will be others as the days come and go. But I pledge you tonight that we intend to fight this battle where it should be fought – in the courts, and in the Congress, and in the hearts of men.”

The Passage and Success of the Voting Rights Act

Congress made good on the President’s promises and fulfilled its oath.  The Voting Rights Act, the crowning achievement of the Civil Rights Movement, was signed into law in August 1965, less than five (5) months after those bloody events in Selma.

The VRA would allow individuals to sue in federal court when their voting rights were denied. It would allow the Department of Justice to do the same. And, recognizing that “voting discrimination … on a pervasive scale” justified an “uncommon exercise of congressional power[,]” despite the attendant “substantial federalism costs[,]” it required certain states and localities, for a limited time, to obtain the approval (or “pre-clearance”) of either DOJ or a federal court sitting in Washington, DC before making any alteration to their voting laws, from registration requirements to the location of polling places.[3]

And it worked.

The same Alabama Governor and Democrat, George Wallace, who (on first losing re-election) had promised himself never to be “out-segged” again and who, on getting back into office in 1963, had proclaimed “segregation today, segregation tomorrow, segregation forever[!]” would win re-election in 1982 by seeking and obtaining the majority support of Alabama’s African Americans. By 2013, “African-American voter turnout exceeded white voter turnout in five of the six States originally covered by [the pre-clearance requirement], with a gap in the sixth State of less than one half of one percent;”[4] the percentage of preclearance submissions drawing DOJ objections had dropped about 100-fold between the first decade under pre-clearance and 2006.[5]

At long last, with only occasional exceptions (themselves addressed through litigation under the VRA), American elections were held consistent with the requirements of the Constitution and the equality before the law of all U.S. Citizens.

Dan Morenoff is Executive Director of The Equal Voting Rights Institute.

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[1] Southern states might now be required by law to integrate their public schools, but, by and large, they didn’t yet do so.  That would follow around 1970 when a pair of events forced the issue: (a) a University of Southern California football team led by O.J. Simpson drubbed the University of Alabama in the Crimson Tide’s 1970 home opener – so allowing Alabama Coach Bear Bryant to finally convince Alabama Governor George Wallace that the state must choose between having competitive football or segregated football; and (b) President Nixon quietly confronting the Southern governments that had supported his election with the conclusion of the American intelligence community that their failure to integrate was costing America the Cold War – they must decide whether they hated their black neighbors more than they hated the godless Communists.  However ironically, what finally killed Jim Crow was a love of football and a hatred of Marxism.

[2] See,

[3] Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 2620 and 2624 (2013) (each citing South Carolina v. Katzenbach, 383 U.S. 301, 308 and 334 (1966)); and at 2621 (citing Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 202-03 (2009)), respectively.

[4] Id. at 2626.

[5] Id.

Guest Essayist: Dan Morenoff

For a decade after the Civil War, the federal government sought to make good its promises and protect the rights of the liberated as American citizens.  Most critically, in the Civil Rights Act of 1866, Congress created U.S. Citizenship and, in the Civil Rights Act of 1875, Congress guaranteed all American Citizens access to all public accommodations. Then, stretching from 1877 to the end of the century following the close of the Civil War, the federal government did nothing to assure that those rights were respected. Eventually, in Brown v. Board of Education, the Supreme Court started to admit that this was a problem, a clear failure to abide by our Constitution. But the Supreme Court (in Brown II) also made clear that it wouldn’t do anything about it.

So things stood, until a man in high office made it his business to get the federal government again on the side of right, equality, and law. That man was Lyndon Baines Johnson. And while this story could be told in fascinating, exhaustive detail,[1] these are its broad outlines.

Jim Crow’s Defenders

Over much of the century following the Civil War’s close, the American South was an accepted aberration, where the federal government turned a blind-eye to government mistreatment of U.S. Citizens (as well as to the systematic failure of governments to protect U.S. Citizens from mob-rule and racially-tinged violence), and where the highest office White Southerners could realistically dream of attaining was a seat in the U.S. Senate from which such a Southerner could keep those federal eyes blind.[2], [3] So, for the decades when it mattered, Southern Senators used their seniority and the procedures of the Senate (most prominently the filibuster, pioneered the previous century by South Carolina’s John C. Calhoun in the early 1800s) to block any federal ban on lynching, to protect the region’s racial caste system from federal intrusion, and to steadily steer federal money into the rebuilding of their broken region.  For decades, the leader of these efforts was Senator Richard Russell, a Democrat from Georgia and an avowed racist, if one whose insistence on the prerogatives of the Senate and leadership on other issues nonetheless earned him the unofficial title, “the Conscience of the Senate.”

LBJ Enters the Picture

Then Lyndon Baines Johnson got himself elected to the Senate as a Democrat from Texas in 1948. He did so through fraud in a hotly contested election. The illegal ballots counted on his behalf turned a narrow defeat into an 87-vote victory that triggered his Senate colleagues calling him “Landslide Lyndon” for the rest of his career.

By that time, LBJ had established a number of traits that would remain prominent throughout the rest of his life. Everywhere he went, LBJ consistently managed to convince powerful men to treat him as if he was their professional son. For a few examples, LBJ had convinced the president of his college to treat him alone among decades of students as a preferred heir. For another, as a Congressman, he managed to convince Sam Rayburn, a Democrat from Texas and Speaker of the House for 17 of 21 years, a man before whom everyone else in Washington coward, to allow LBJ to regularly walk up to him in large gatherings to kiss his bald head. And everywhere he went, LBJ consistently managed to identify positions no one else wanted that held potential leverage and therefore could be made focal points of enormous power. When LBJ worked as a Capitol-Hill staffer, he turned a “model Congress,” in which staffers played at being their bosses, into a vehicle to move actual legislation through the embarrassment of his rivals’ bosses. On a less positive note, everywhere he went, LBJ had demonstrated (time and again) an enthusiasm for verbally and emotionally abusing those subject to his authority such as staffers, girl-friends, his wife…, sometimes in the service of good causes and other times entirely in the name of his caprice and meanness.

In the Senate, LBJ followed form. He promptly won the patronage of Richard Russell, convincing the arch-segregationist both that he was the Southerner capable of taking up Russell’s mantle after him and that Russell should teach him everything he knew about Senate procedure.  Arriving at a time that everyone else viewed Senate leadership positions as thankless drudgery, LBJ talked his way into being named his party’s Senate Whip in only his second Congress in the chamber. Four years later, having impressed his fellow Senators with his ability to accurately predict how they would vote, even as they grew to fear his beratings and emotional abuse, LBJ emerged as Senate Majority Leader. And in 1957, using as instigation the support of President Dwight D. Eisenhower, a Republican from Kansas, for such a measure and the recent Supreme Court issuance of Brown, LBJ managed to convince Russell both that the Senate must pass the first Civil Rights Act since Reconstruction, a comparatively weak bill, so palatable to Russell as a way to prevent the passage of a stronger one and that Russell should help him pass it to advance LBJ’s chances of winning the Presidency in 1960 as a loyal Southerner. Substantively, that 1957 Act created the U.S. Civil Rights Commission, a clearinghouse for ideas for further reforms, but one with no enforcement powers. The Act’s real power, though, wasn’t in its substance. Its real power lay in what it demonstrated was suddenly possible: where a weak act could pass, a stronger one was conceivable. And where one was conceivable, millions of Americans long denied equality, Americans taught by Brown, in the memorable phraseology of the Reverend Martin Luther King, Jr. that “justice too long delayed is justice denied” would demand the passage of the possible.

The Kennedy Years

Of course, Johnson didn’t win the Presidency in 1960. But, in part thanks to Rayburn and Russell’s backing, he did win the Vice Presidency. There, he could do nothing, and did. President John F. Kennedy, a Democrat from Massachusetts, didn’t trust him, the Senate gave him no role, and Bobby Kennedy, the President’s in-house proxy and functional Prime Minister, officially serving as Attorney General, openly mocked and dismissed Johnson as a washed up, clownish figure. So as the Civil Rights Movement pressed for action to secure the equality long denied, as students were arrested at lunch-counters and freedom riders were murdered, LBJ could only take the Attorney General’s abuse, silently sitting back and watching the President commit the White House to pushing for a far more aggressive Civil Rights Act, even as it had no plan for how to get it passed over the opposition of Senator Russell and his block of Southern Senators.

Dallas, the Presidency, and How Passage Was Finally Obtained

Not long before his assassination in 1963, President Kennedy proposed stronger legislation and said the nation “will not be fully free until all its citizens are free.” But, when an assassin’s bullet tragically slayed President Kennedy on a Dallas street, LBJ became the new president of the United States. The man with a knack for finding leverage and power where others saw none suddenly sat Center Stage, with every conceivable lever available to him. And he wasted no time deploying those levers. Uniting with the opposition party’s leadership in the Senate, Everett Dirksen, a Republican from Illinois, was the key man who delivered the support of eighty-two percent (82%) of his party’s Senators, President Johnson employed every tool available to the chief magistrate to procure passage of the stronger Civil Rights Act he had once promised Senator Russell that the 1957 Act would forestall.

The bill he now backed, like the Civil Rights Act of 1875, would outlaw discrimination based on race, color, religion, or national origin in public accommodations through Title II. It would do more. Title I would forbid the unequal application of voter registration laws to different races. Title III would bar state and local governments from denying access to public facilities on the basis of race, color, religion, or national origin. Title IV would authorize the Department of Justice to bring suits to compel the racial integration of schools. Title VI would bar discrimination on the basis of race, color, or national origin by federally funded programs and activities. And Title VII would bar employers from discriminating in hiring or firing on the basis of race, color, religion, sex, or national origin.

This was the bill approved by the House of Representatives after the President engineered a discharge petition to force the bill out of committee. This was the bill filibustered by 18 Senators for a record 60 straight days. This was the bill where that filibuster was finally broken on June 10, 1964, the first filibuster of any kind defeated since 1927. After the lengthy Democrat filibuster in the Senate, the bill was finally passed 73-27. The Senate passed that Civil Rights bill on June 19, 1964. The House promptly re-passed it as amended by the Senate.

On July 2, 1964, President Johnson signed the Civil Rights Act into law on national television. Finally, on the same day that John Adams had predicted 188 years earlier would be forever commemorated as a “Day of Deliverance” with “Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other[,]” the federal government had restored the law abandoned with Reconstruction in 1876. Once more, the United States government would stand for the equality before the law for all its Citizens.

Dan Morenoff is Executive Director of The Equal Voting Rights Institute.

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[1] Robert Caro has, so far, written four (4) books over as many decades telling this story over thousands of pages.  The author recommends them, even as he provides this TLDR summation.  Caro’s books on the subject are: The Years of Lyndon Johnson: The Path to Power, The Years of Lyndon Johnson: Means of Ascent, The Years of Lyndon Johnson: Master of the Senate, and The Years of Lyndon Johnson: The Passage of Power.

[2] Black Southerners, almost totally barred from voting, could not realistically hope for election to any office over this period.  It is worth noting, however, that the Great Migration saw a substantial portion of America’s Black population move North, where this was not the case and where such migrants (and their children) could and did win elective office.

[3] The exception proving the rule is President Woodrow Wilson.  Wilson, the son of a Confederate veteran, was born in Virginia and raised mostly in South Carolina.  Yet he ran for the Presidency as the Governor of New Jersey, a position be acquired as a result of his career at Princeton University (and the progressive movement’s adoration of the “expertise” that an Ivy League President seemed to promise).  Even then, Wilson could only win the Presidency (which empowered him to segregate the federal workforce) when his two predecessors ran against each other and split their shared, super-majority support.

Guest Essayist: Dan Morenoff

You can count on one hand the number of Supreme Court decisions that normal people can identify by name and subject. Brown is one of them (and, arguably, both the widest and most accurately known). Ask any lawyer what the most important judicial decision in American history is, and they will almost certainly tell you, with no hesitation, Brown v. Board of Education. It’s the case that, for decades, Senators have asked every nominee to become a judge to explain why is right.

It’s place in the public mind is well-deserved, even if it should be adjusted to reflect more accurately its place in modern American history.

Backstory: From Reconstruction’s Promise to Enshrinement of Jim Crow in Plessy

Remember the pair of course reversals that followed the Civil War.

Between 1865 and 1876, Congress sought to make good the Union’s promises to the freedmen emancipated during the war. In the face of stiff, violent resistance by those who refused to accept the war’s verdict, America amended the Constitution three (3) times, with: (a) the Thirteenth Amendment banning slavery; (b) the Fourteenth Amendment: (i) affirmatively acting to create and bestow American citizenship on all those born here, (ii) barring states from “abridg[ing] the privileges or immunities of citizens of the United States[,]” and (iii) guaranteeing the equal protection of the laws; and (c) the Fifteenth Amendment barring states from denying American citizens the right to vote “on account of race, color, or previous condition of servitude.” Toward the same end, Congress passed the Civil Rights Acts of 1866 and 1875, the Enforcement Acts of 1870 and 1871, and the Ku Klux Klan Act. They created the Department of Justice to enforce these laws and supported President Grant in his usage of the military to prevent states from reconstituting slavery under another name.

Until 1876. To solve the constitutional crisis of a Presidential election with no clear winner, Congress (and President Hayes) effectively, if silently, agreed to effectively and abruptly end all that. The federal government removed troops from former Confederate states and stopped trying to enforce federal law. And the states “redeemed” by the violent forces of retaliation amended their state constitutions and passed the myriad of laws creating the “Jim Crow” regime of American apartheid.  Under Jim Crow, races were separated, the public services available to an American came to radically differ depending on that American’s race, and the rights of disfavored races became severely curtailed. Most African Americans were disenfranchised, then disarmed, and then subjected to mob-violence to incentivize compliance with the “redeemer” community’s wishes.

One could point to a number of crystallizing moments as the key point when the federal government made official that it and national law would do nothing to stop any of this. But the most commonly cited is the Plessy v. Ferguson decision of the Supreme Court, issued in 1896. It was a case arising out of New Orleans and its even-then-long-multi-hued business community. There, predictably, there were companies and entrepreneurs that hated these laws interfering with their businesses and their ability to provide services to willing buyers on the (racially integrated) basis they preferred. A particularly hated law passed by the State of Louisiana compelled railroads (far and away the largest industry of the day) to separate customers into different cars on the basis of race. With admirable truth in advertising, the Citizens Committee to Test the Constitutionality of the Separate Car Law formed and went to work to rid New Orleans of this government micromanagement. Forgotten in the long sweep of history, the Committee (acting through the Pullman Company, one of America’s largest manufacturers at the time) actually won their first case at the Louisiana Supreme Court, which ruled that any state law requiring separate accommodations in interstate travel violated the U.S. Constitution (specifically, Article I’s grant of power to Congress alone to regulate interstate travel). They then sought to invalidate application of the same law to train travel within Louisiana as a violation of the Fourteenth Amendment. With coordination between the various actors involved, Homer Plessy (a man with 7 “white” and 1 “black” great-grandparent(s) purchased and used a seat in the state-law required “white” section of a train that the train company wanted to sell him; they then assured a state official knew he was there, was informed of his racial composition, and would willingly arrest Mr. Plessy to create the test case the Committee wanted. It is known to us as Plessy v. Ferguson.[1] This time, though, things didn’t go as planned: the trial court ruled the statute enforceable and the Louisiana Supreme Court upheld its application to Mr. Plessy. The Supreme Court of the United States accepted the case, bringing the national spotlight onto this specific challenge to the constitutionality of the states’ racial-caste-enforcing laws. In 1896, over the noteworthy, highly-praised, sole dissent of Justice John Marshall Harlan, the Supreme Court agreed that, due to its language requiring “equal, but separate” accommodations for the races (and without ever really considering whether the accommodations provided actually were “equal”), the separate car statute was consistent with the U.S. Constitution; they added that the Fourteenth Amendment was not intended “to abolish distinctions based upon color, or to enforce social … equality … of the two races.”

For decades, the Plessy ruling was treated as the federal government’s seal of approval for the continuation of Jim Crow.

Killing Jim Crow

Throughout those decades, African Americans (and conscientious whites) continued to object to American law treating races differently as profoundly unjust. And they had ample opportunities to note the intensity of the injustice. A sampling (neither comprehensive, nor fully indicative of the scope) would include: Woodrow Wilson’s segregation of the federal work force, the resurgence of lynchings following the 1915 rebirth of the Ku Klux Klan (itself an outgrowth of the popularity of Birth of a Nation, the intensely racist film that Woodrow Wilson made the first ever screened at the White House), and the spate of anti-black race riots surrounding America’s participation in World War I.

For the flavor of those riots, consider the fate of the African American community living in the Greenwood section of Tulsa, Oklahoma. In the spring of 1921, Greenwood’s professional class had done so well that it became known as “Negro Wall Street” or “Black Wall Street.” On the evening of May 31, 1921, a mob gathered at the Tulsa jail and demanded that an African American man accused of attempting to assault a white woman be handed over to them. When African Americans, including World War I veterans, came to the jail in order to prevent a lynching, shots were fired and a riot began. Over the next 12 hours, at least three hundred African Americans were killed. In addition, 21 churches, 21 restaurants, 30 grocery stores, two movie theaters, a hospital, a bank, a post office, libraries, schools, law offices, a half dozen private airplanes, and a bus system were utterly destroyed. The Tulsa race riot (perhaps better styled a pogrom, given the active participation of the national guard in these events) has been called “the single worst incident of racial violence in American history.”[2]

But that is far from the whole story of these years. What are today described as Historically Black Colleges and Universities graduated generations of students, who went on to live productive lives and better their communities (whether racially defined or not). They saw the rise of the Harlem Renaissance, where African American luminaries like Duke Ellington, Langston Hughes, and Zora Neale Hurston acquired followings across the larger population and, indeed, the world. The Negro Leagues demonstrated through the national pastime that the athletic (and business) skills of African Americans were equal to those of any others;[3] the leagues developed into some of the largest black-owned businesses in the country and developed fan-followings across America. Eventually, these years saw Jackie Robinson, one of the Negro Leagues’ brightest stars, sign a contract with the Brooklyn Dodgers in 1945 and “break the color barrier” in 1947 as the first black Major Leaguer since Cap Anson successfully pushed for their exclusion in the 1880s.[4] He would be: (a) named Major League Baseball’s Rookie of the Year in 1947; (b) voted the National League MVP in 1949; and (c) voted by fans as an All Star six (6) times (spanning each of the years from 1949-1954). Robinson also led the Dodgers to the World Series in four (4) of those six (6) years.

For the main plot of our story, though, the most important reaction to the violence of Tulsa (and elsewhere)[5] was the “newfound sense of determination” that “emerged” to confront it.[6] Setting aside the philosophical debate that raged across the African American community over the broader period on the best way to advance the prospects of those most impacted by these laws,[7] the National Association for the Advancement of Colored People (the “NAACP”) began to plan new strategies to defeat Jim Crow.”[8]  The initial architect of this challenge was Charles Hamilton Houston, who joined the NAACP and developed and implemented the framework of its legal strategy after graduating from Harvard Law School in 1922, the year following the Tulsa race riot.[9]

Between its founding in 1940, under the leadership of Houston-disciple Thurgood Marshall,[10] and 1955, the NAACP Legal Defense and Education Fund brought a series of cases designed to undermine Plessy.  Houston had believed from the outset that unequal education was the Achilles heel of Jim Crow and the LDF targeted that weak spot.

The culmination of these cases came with a challenge to the segregated public schools operated by Topeka, Kansas. While schools were racially segregated many places, the LDF specifically chose to bring its signature case against the Topeka Board of Education, precisely because Kansas was not Southern, had no history of slavery, and institutionally praised John Brown;[11] the case highlighted that its issues were national, not regional, in scope.[12]

LDF, through Marshall and Greenberg, convinced the Supreme Court to reverse Plessy and declare Topeka’s school system unconstitutional. On May 17, 1954, Chief Justice Earl Warren handed down the unanimous opinion of the Court. Due to months of wrangling and negotiation of the final opinion, there were no dissents and no concurrences. With a single voice the Supreme Court proclaimed that:

…in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

These sweeping tones are why the decision holds the place it does in our collective imagination. They are why Brown is remembered as the end of legal segregation. They are why Brown is the most revered precedent in American jurisprudence.

One might have thought that they would mean an immediate end to all race-based public educational systems (and, indeed, to all segregation by law in American life). Indeed, as Justice Marshall told his biographer Dennis Hutchison in 1979, he thought just that: “the biggest mistake [I] made was assuming that once Jim Crow was deconstitutionalized, the whole structure would collapse – ‘like pounding a stake in Dracula’s heart[.]’”

But that was not to be. For the Court to get to unanimity, the Justices needed to avoid ruling on the remedy for the violation they could jointly agree to identify. So they asked the parties to return and reargue the question of what to do about it the following year. When they again addressed the Brown case, the Supreme Court reiterated its ruling on the merits from 1954, but as to what to do about it, ordered nothing more than that the states “make a prompt and reasonable start toward full compliance” and get around to “admit[ting children] to public schools on a racially nondiscriminatory basis with all deliberate speed.”

So the true place of Brown in the story of desegregation is best reflected in Justice Marshall’s words (again, to Dennis Hutchison in 1979): “…[i]n the twelve months between Brown I and Brown II, [I] realized that [I] had yet to win anything….  ‘In 1954, I was delirious. What a victory!  I thought I was the smartest lawyer in the entire world. In 1955, I was shattered.  They gave us nothing and then told us to work for it. I thought I was the dumbest Negro in the United States.’”

Of course, Justice Marshall was far from dumb, however he felt in 1955.  But actual integration didn’t come from Brown. That would have to wait for action by Congress, cajoling by a President, and the slow development of the cultural facts-on-the-ground arising from generations of white American children growing up wanting to be like, rooting for, and seeing the equal worth in men like Duke Ellington, Langston Hughes, Jackie Robinson, and Larry Doby.

Dan Morenoff is Executive Director of The Equal Voting Rights Institute.

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[1] In the terminology of the day, Mr. Ferguson was a “Carpetbagger.”  A native of Massachusetts who had married into a prominent abolitionist family, Mr. Ferguson studied law in Boston before moving to New Orleans in 1865.  He was the same judge who, at the trial court level, had ruled that Louisiana’s separate cars act could not be constitutionally applied to interstate travel.  Since Plessy’s prosecution also was initially conducted in Mr. Ferguson’s courtroom, he became the named defendant, despite his own apparent feelings about the propriety of the law.

[2] All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education, by Charles J. Ogletree, Jr. W.W. Norton & Company (2004).

[3] In 1936, Jesse Owens did the same on an amateur basis at the Berlin Olympics.

[4] Larry Doby became the first black American League player ever weeks later (the AL had not existed in the 1880s).

[5] There were parallel riots in Omaha and Chicago in 1919.

[6] See, All Deliberate Speed, in Fn. 2, above.

[7] The author recommends delving into this debate.  Worthy samples of contributions to it the reader might consider include: (a) Booker T. Washington’s 1895 Address to Atlanta’s Cotton States and International Exposition (; and (b) W.E.B. Du Bois’s The Souls of Black Folk.

[8]  See, All Deliberate Speed, in Fn. 2, above.

[9] Houston was the first African American elected to the Harvard Law Review and has been called “the man who killed Jim Crow.”

[10] Later a Justice of U.S. Supreme Court himself, Justice Marshall was instrumental in the NAACP’s choice of legal strategies.  But LDF was not a one-man shop.  Houston had personally recruited Marshall and Oliver Hill, the first- and second-ranked students in the Law School Class of 1933 at Howard University – itself, a historically black institution founded during Reconstruction – to fight these legal battles.  Later, Jack Greenberg was Marshall’s Assistant Counsel was and hand-chosen successor to lead the LDF

[11] The Kansas State Capitol, in Topeka, has featured John Brown as a founding hero since the 1930s (

[12] This was all the more true when the case was argued before the Supreme Court, because the Supreme Court had consolidated Brown for argument with other cases from across the nation.  Those cases were Briggs v. Elliot (from South Carolina), Davis v. County School Board of Prince Edward County (from Virginia), Belton (Bulah) v. Gebhart (from Delaware), and Bolling v. Sharpe (District of Columbia).

Guest Essayist: Dan Morenoff

Usually, breaking down history into chapters requires imposing arbitrary separations. Every once in a while, though, the divisions are clear and real, providing a hard-stop in the action that only makes sense against the backdrop of what it concludes, even if it explains what follows.

For reasons having next-to-nothing to do with the actual candidates,[1] the Presidential election of 1876 provided that kind of page-break in American history. It came on the heels of the Grant Presidency, during which the victor of Vicksburg and Appomattox sought to fulfill the Union’s commitments from the war (including those embodied in the post-war Constitutional Amendments) and encountered unprecedented resistance. It saw that resistance taken to a whole new level, which threw the election results into chaos and created a Constitutional crisis. And by the time Congress had extricated itself from that, they had fixed the immediate mess only by creating a much larger, much more costly, much longer lasting one.

Promises Made

To understand the transition, we need to start with the backdrop.

Jump back to April 1865. General Ulysses S. Grant takes Richmond, the Confederate capitol. The Confederate government collapses in retreat, with its Cabinet going its separate ways.[2] Before it does, Confederate President Jefferson Davis issues his final order to General Robert E. Lee and the Army of Northern Virginia: keep fighting! He tells Lee to take his troops into the countryside, fade into a guerrilla force, and fight on, making governance impossible. Lee, of course, refuses and surrenders at Appomattox Courthouse. A celebrating Abraham Lincoln takes a night off for a play, where a Southern sympathizer from Maryland murders him.[3] Before his passing, Abraham Lincoln had freed the slaves and won the war (in part, thanks to the help of the freedmen who had joined the North’s army), so saving the Union. His assassination signified a major theme of the next decade: some’s refusal to accept the war’s results left them willing to cast aside the rule of law and employ political violence to resist the establishment of new norms.

Leaving our flashback: Andrew Johnson succeeded Lincoln in office, but in nothing else. Super-majorities in both the House and Senate hated him and his policies and established a series of precedents enhancing Congressional power, even while failing to establish the one they wanted most.[4] Before his exit from the White House, despite Johnson’s opposition: (a) the States had ratified the Thirteenth Amendment (banning slavery); (b) Congress had passed the first Civil Rights Act (in 1866, over his veto); (c) Congress had proposed and the States had ratified the Fourteenth Amendment (“constitutionalizing” the Civil Rights Act of 1866 by: (i) creating federal citizenship for all born in our territory; (ii) barring states from “abridg[ing] the privileges or immunities of citizens of the United States[;]” (iii) altering the representation formula for states in Congress and the electoral college, and (iv) guaranteeing the equal protection of the laws); and (d) in the final days of his term, Congress formally proposed the Fifteenth Amendment (barring states from denying or abridging the right to vote of citizens of the United States “on account of race, color, or previous condition of servitude.”).

Notice how that progression, at each stage, was made necessary by the resistance of some Southerners to what preceded it. Ratification of the Thirteenth Amendment abolishing slavery? Bedford Forrest, a low-ranking Confederate General, responded by reversing Lee’s April decision: in December 1865, he founded the Ku Klux Klan (effectively, Confederate forces reborn) to wage the clandestine war against the U.S. government and the former slaves it had freed, which Lee refused to fight.  Their efforts (and, after Johnson recognized them as governments, the efforts of the Southern states to recreate slavery under another name) triggered passage of the Civil Rights Act of 1866 and the Fourteenth Amendment. Southern states nonetheless continued to disenfranchise black Americans. So, Congress passed the Fifteenth Amendment to stop them. Each step required the next.

And the next step saw America, at its first chance, turn to its greatest hero, Ulysses S. Grant, to replace Johnson with someone who would put the White House on the side of fulfilling Lincoln’s promises. Grant tried to do so. He (convinced Congress to authorize and then) created the Department of Justice; he backed, signed into law, and had DOJ vigorously prosecute violations of the Enforcement Act of 1870 (banning the Klan and, more generally, the domestic terrorism it pioneered using to prevent black people from voting), the Enforcement Act of 1871 (allowing federal oversight of elections, where requested), and the Ku Klux Klan Act (criminalizing the Klan’s favorite tactics and making state officials who denied Americans either their civil rights or the equal protection of law personally liable for damages). He readmitted to the Union the last states of the old Confederacy still under military government, while conditioning readmission on their recognition of the equality before the law of all U.S. citizens. Eventually, he signed into law the Civil Rights Act of 1875, guarantying all Americans access to all public accommodations.

And over the course of Grant’s Presidency, these policies bore fruit.  Historically black colleges and universities sprang up. America’s newly enfranchised freedmen and their white coalition partners elected governments in ten (10) states of the former Confederacy. These governments ratified new state constitutions and created their states’ first public schools. They saw black Americans serve in office in significant numbers for the first time (including America’s first black Congressmen and Senators and, in P.B.S. Pinchback, its first black Governor).

Gathering Clouds

But that wasn’t the whole story.

While the Grant Administration succeeded in breaking the back of the Klan, the grind of entering a second decade of military tours in the South shifted enough political power in the North to slowly sap support for continued, vigorous, federal action defending the rights of black Southerners. And less centralized terrorist forces functioned with increasing effectiveness. In 1872, in conjunction with a state election marred by thuggery and fraud, one such “militia” massacred an untold number of victims in Colfax, Louisiana. Federal prosecution of the perpetrators foundered when the Supreme Court gutted the Enforcement Acts as beyond Congress’s power to enact.

That led to more such “militias” often openly referring to themselves as “the military arm of the Democratic Party” flowering across the country.  And their increasingly brazen attacks on black voters and their white allies allowed those styling themselves “Redeemers” of the region to replace, one by one, the freely elected governments of Reconstruction first in Louisiana, then in Mississippi, then in South Carolina… with governments expressly dedicated to restoring the racial caste system.  “Pitchfork” Ben Tillman, the leader of a parallel massacre of black Union army veterans living in Hamburg, South Carolina, used his resulting notoriety to launch a political career spanning decades. Eventually, he reached both the governor’s mansion and the U.S. Senate, along the way, becoming the father of America’s gun-control laws, because it was easier to terrorize and disenfranchise the disarmed.

By 1876, with such “militias” enjoying a clear playbook and, in places, support from their state governments, the stage was set for massive fraud and duress trying to swing a presidential election. Attacks on black voters, and their allies, intended to prevent a substantial percentage of the electorate from voting, unfolded on a regional scale. South Carolina, while pursuing such illegal terror, simultaneously claimed to have counted more ballots than it had registered voters. The electoral vote count it eventually sent to the Senate was certified by no one – that for Louisiana was certified by a gubernatorial candidate holding no office. Meanwhile, Oregon sent two different sets of electoral votes: one certified by the Secretary of State, the other certified by the Governor, cast for two different Presidential candidates.

The Mess

The Twelfth Amendment requires states’ electors to: (a) meet; (b) cast their votes for the President and Vice President; (c) compile a list of vote-recipients for each (to be signed by the electors and certified); and (d) send the sealed list to the U.S. Senate (to the attention of the President of the Senate). It then requires the President of the Senate to open the sealed lists in the presence of the House and Senate to count the votes.

Normally, the President of the Senate is the Vice President. But Grant’s Vice President, Henry Wilson, had died in 1875 and the Twenty-Fifth Amendment’s mechanism to fill a Vice Presidential vacancy was still almost a century away. That left, in 1876, the Senate’s President Pro Tempore, Thomas W. Ferry (R-MI) to serve as the acting President of the Senate. But given the muddled state of the records sent to the Senate, Senate Democrats did not trust Ferry to play this role. Since the filibuster was well established by the 1870s, the Senate could do nothing without their acquiescence. More, they could point to Johnson-Administration precedents enhancing Congressional authority to demand that resolution of disputed electoral votes be reached jointly by both chambers of Congress, which they preferred, because Democrats had taken a majority of the lower House in 1874.

No one agreed which votes to count. No one agreed who could count them. And the difference between sets was enough to deliver the majority of the electoral college to either major party’s nominees for the Presidency and Vice Presidency. And all of this came at the conclusion of an election already marred by large-scale, partisan violence.

Swapping Messes

It took the Congress months to find its way out of this morass. Eventually, it did so through an unwritten deal. On March 2, 1877, Congress declared Ohio Republican, Rutherford B. Hayes, President of the United States over Democratic candidate Samuel J. Tilden of New York. Hayes, in turn, embraced so-called “Home Rule,” removing all troops from the old Confederacy and halting the federal government’s efforts to either enforce the Civil Rights Acts or make real the promises of the post-war Constitutional Amendments.

With the commitments of Reconstruction abandoned, the “Redeemers” promptly completed their “Redemption” of the South from freely, lawfully elected governments. They rewrote state constitutions, broadly disenfranchised those promised the vote by the Fifteenth Amendment, and established the whole Jim-Crow structure that ignored (really, made a mockery of) the Fourteenth Amendment’s guaranties.

Congress solved the short-term problem by creating a larger, structural one that would linger for a century.

Dan Morenoff is Executive Director of The Equal Voting Rights Institute.

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[1] Rutherford B. Hayes, the Republican nominee, was the Governor of Ohio at the time who had served in the Union army as a Brigadier General; Samuel J. Tilden, the Democratic nominee, was the Governor of New York at the time, and earlier had been among the most prominent anti-slavery, pro-union Democrats to remain in the party in 1860.  Indeed, in 1848, Tilden was a founder of Martin Van Buren’s Free Soil Party, who attacked the Whigs (which Hayes then supported) as too supportive of slave-power.

[2] CSA President Jefferson Davis broke West, with the intention of reaching Texas and Arkansas (both unoccupied by the Union and continuing to claim authority from that rump-Confederacy).  His French-speaking Louisianan Secretary of State Judah P. Benjamin broke South, pretending to be a lost immigrant peddler as he wound his way to Florida, then took a raft to Cuba as a refugee.  He won asylum, there, with the British embassy and eventually rode to London with the protection of the British Navy – alone among leading Confederates, Benjamin had a successful Second Act, in which he became a leading British lawyer and author of the world’s leading treatise on international taxation.

[3] To this day, it is unclear to what degree John Wilkes Booth was a Confederate operative.  He certainly spied for the CSA.  No correspondence survives to answer whether his assassination of Lincoln was a pre-planned CSA operation or freelancing after Richmond’s fall.

[4] He survived impeachment by a single vote.

Guest Essayist: Dan Morenoff

The Treaty of Guadalupe Hidalgo was signed shortly after James Wilson Marshall discovered gold flakes in the area now known as Sacramento. Border disputes would continue, but the treaty ended the Mexican-American War (1846-1848) and added a large swath of western territory broadly expanding the United States. It would make up Arizona, California, Nevada, New Mexico, Utah, Wyoming, Washington, Oregon, Texas, and parts that would later make up Oklahoma, Colorado, Kansas, Wyoming, and Montana. The new lands acquired from Mexico stirred sectional passions about the expansion of slavery in the West that helped lead to the Civil War after being temporarily settled by the Compromise of 1850.

Americans almost never think about the Mexican-American War. We don’t often pause to consider its justifications or results. We may know that it served as the training ground of just about everyone who became famous in the Civil War, but details of how, where, or why they fought that prequel might as well be myth. Most of us have no idea how many of our place names have their roots in its participants. Outside of a little-understood line in the Marine Hymn, we almost never hear anything about how we won it. And almost no American knows anything about the Treaty of Guadalupe-Hidalgo that formally ended it: not its name, not its terms, not who signed it, and not the drama that went into creating a Mexican government willing to enter it.

We have good reason to studiously remember to forget these details.  Guadalupe-Hidalgo was an unjust treaty forced on a weaker neighbor to conclude our least-just war. It was also hugely consequential, and we spectacularly benefited from imposing it on Mexico.

The War Itself

The war’s beginnings lay in the unsettled details of Texas’s War of Independence. Yes, Mexican President Santa Anna had signed the so-called Treaties of Velasco while held prisoner after the Texian victory at San Jacinto in 1836, but Mexico both: (a) refused to ratify them (so never formally recognizing Texas’s independence); and (b) simultaneously argued that the unrecognized republic’s Southern border lay at the Nueces River, about a hundred and fifty (150) miles north of the Rio Grande (as Texas noted the Treaties of Velasco would have determined).

All this came to matter when James K. Polk won the Presidency in 1844.  He had campaigned on a series of promises that, for our purposes, included: (a) annexing Texas; and (b) obtaining California (and parts of five (5) other modern states) from Mexico.[1], [2]  Part one came early and easily, as he negotiated Texas’s ascension to the Union in 1845.  But when the Mexican government refused to meet with his emissary sent to negotiate the purchase of the whole northern part of their country,[3] in pursuit of a fallback plan, President Polk sent an army south to resolve the remaining ambiguity of the Texas-Mexico border. That army (contemporaneously called, with greater honesty than later sources usually admit, the “Army of Occupation”) under the command of Zachary Taylor went to “guard” the northern shore of the Rio Grande.  It took some doing, including the shelling of Matamoros (a major Mexican port city on the uncontested Southern shore of the river), but Taylor eventually managed to provoke a Mexican response. Mexican forces crossed the river to drive back the attacking Americans, in the process prevailing in the Thornton Skirmish and destroying Fort Brown.[4]

President Polk styled these actions a Mexican invasion of America that had killed American soldiers on American soil. On that basis, he sought and received a Congressional declaration of war. Days after receiving it (and in a time before even telegraphs, the distances involved – and coordination with naval forces in the Pacific make that timing revealing), American forces invaded Mexico in numerous arenas across the continent, seizing modern-day Colorado, New Mexico, Arizona, and Nevada; simultaneously, American settlers declared the “independence” of the Republic of California (the “independence” of which lasted no more than the twenty-five (25) days between their ineffective declaration and the arrival of the American military in Sonoma Valley).

But the achieving of Polk’s aims didn’t end the war.  Mexico didn’t accept the legitimacy or irreversibility of any of this. Polk ordered Taylor’s army South, to take Monterrey and press into the Mexican heartland.  Eventually, when that, too, failed to alter Mexican recalcitrance, President Polk sent another army, under the Command of Winfield Scott, to land in the Yucatan and follow essentially the same route Cortez had toward Mexico City. Like the conquistadors of old, that force (including Marines) would head for “the Halls of Montezuma” (the last Aztec king).

All this was controversial immediately.  Abraham Lincoln condemned the entire escapade from the floor of Congress as “unnecessarily and unconstitutionally commenced.” Henry Clay called it an act of “unnecessary and [ ] offensive aggression.”  Fresh out of West Point, Ulysses S. Grant fought in the war, but after his Presidency would reflect that “I do not think there was ever a more wicked war than that waged by the United States on Mexico.” And as the war raged, Washington, D.C. became consumed with the question of what all this new territory would do to the delicate balance established by the Missouri Compromise; was the whole war just a scheme to create new slave states? It was still only 1846, with the war’s outcome still unclear, when Pennsylvania Congressman David Wilmot sought to amend an appropriations bill (meant to authorize the funds to pay for peace) with “the Wilmot Proviso,” a bar on slavery in any formerly Mexican territory.[5]

Victory and Then What?

Wicked or not, the plan worked.  American forces promptly took Mexico City in September of 1847.

As Mexico City fell (with its President fleeing and the Foreign Minister declared acting-President), the collapsing Mexican Government proposed terms of peace (under which Mexico would retain all of modern New Mexico, Arizona, Southern California, and much of Nevada), designed to further pique Washington’s emerging divide by giving the U.S. only territory north of the free/slave divide established by the Missouri Compromise. But the Mexican government’s ability to deliver even those terms (which would have reversed enormous battlefield losses) was highly suspect; Jefferson Davis, who had fought in most of the war’s battles before being appointed a Mississippi Senator, warned Polk that any Mexican emissaries coming to Washington to negotiate based on it would see the talks go longer than their government’s survival and the negotiators labelled traitors and murderers, should they ever try to return home. And he was pretty clearly right: the people of Mexico were not happy about any of this: not with the loss of more than ½ their territory, not with the conquest of their capital, and not with the collapse of the government that was supposed to prevent anything of the sort from happening.

So how do you end a war and go home when there’s no one left to hand back the pieces to?

That was the rub.  The Americans in Mexico City didn’t want to stay. The whole war had been controversial and America having to occupy the entirety of Mexico sat particularly poorly with its opponents. The Wilmot Proviso hadn’t gone away either and Senators were already arguing that it would need to be incorporated into any peace treaty with Mexico (whomever that meant).  And there was no one with the ability to clearly speak for Mexico to negotiate anything anyway.

Eventual Treaty with Mexico’s Acting Government

It would take almost all of the remainder of Polk’s presidency to resolve these problems. Eventually, the acting Mexican government became willing to sign what America had decided the terms of peace required.  Those terms?  America would pay Mexico $15 million.[6]  America would assume and pay another $3.25 million of Mexico’s debts to Americans.[7]  As the GDP of California, alone, is estimated at $3.1 trillion for 2019, the purchase price was a bargain, to say the least. Mexico would renounce all rights to Texas and essentially all the rest of the modern American West.  All of California (down to the port of San Diego, but not Baja), Nevada, New Mexico, Utah, and Colorado (and almost all of Arizona)[8] would so change hands; the Republic of Texas’s territories were substantially larger than those of the modern State of Texas, so this renunciation also secured American title to parts of Oklahoma, Kansas, and Wyoming.


So America became the transcontinental republic Jefferson had dreamed of. Polk got to go home with his mission accomplished.[9]  America secured title to California weeks after settlers discovered what would become the world’s largest known gold deposits (to that date) at Sutter’s Mill, but before word of that discovery had made it to either Mexico City or Washington.

But America acquired something else with vast territories, and unforeseen riches.  It also acquired a renewal of fights over what to do with seemingly limitless, unsettled lands and how to accommodate the evil of slavery within them. Those fights, already underway before Mexico City fell, would scroll out directly into Bleeding Kansas and the Civil War.

Dan Morenoff is Executive Director of The Equal Voting Rights Institute.

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[1] The complete set also included: (a) resolving the border with Canada of America’s Oregon territory; (b) reducing taxes; (c) solving the American banking crises that had lingered for decades; and (d) leaving office without seeking reelection.  Famously, Polk followed through and completed the full set.

[2] The targeted territory included lands now lying in California, Nevada, Arizona, New Mexico, Utah, and Colorado.

[3] That was John Slidell, for whom the New Orleans suburb is named.

[4] Mexico so killed Major Jacob Brown, arguably the first American casualty of the war (for whom both the fort-at-issue and the town it became – Brownsville, Texas – were named).

[5] It failed in the House at the time, but exposed the raw power plays that success in (or perhaps entry into) the Mexican-American War would bring to the forefront of American politics.

[6] Depending on how one chooses to calculate the current value of that payment, it could be scored as the equivalent in modern dollars of $507.2 million, $4.04 billion, $8.86 billion, or $9.04 billion.

[7] The same approaches suggest this worked out to an assumption, in today’s dollars, of another $109.9 million, $876.1 million, $1.91 billion, or $1.96 billion in Mexican obligations.

[8] Later, the US would separately negotiate the Gadsen Purchase to acquire a mountain pass through which a railroad would one-day run.

[9] He promptly died on reaching his home in Tennessee; some have noted that this means he was not only the sole President to do everything he promised, but also the perfect ex-President.

Guest Essayist: Dan Morenoff, Attorney


Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

We often conflate the history of our country and our constitution, as if the United States of America burst forth, full-grown, from the head of Zeus at ratification in 1789.  To understand what’s important about Article VII of the Constitution, though, you need to think about the government that existed before and authorized the convening of the Constitutional Convention.  Article VII is how the Founders changed the rules in the middle of the game to overstep their authority and remake the nation in ways the Articles of Confederation were designed to prevent.

The United States of America had existed as an independent nation for 13 years before ratification; even before that, the Continental Congress had convened for an additional 3 years – had it not, there would have been no organ of the United States capable of declaring our independence.  We had 14 Presidents before George Washington, 7 of whom were President under the nation’s first written Constitution, the Articles of Confederation.  And, throughout those years, the body that met, with the power to act for America, was the united States in Congress assembled.

It was this Congress that called what became the Constitutional Convention in Philadelphia.  It did so through a resolution calling for states to send delegates “for the sole purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”  This was consistent with the Articles themselves, which provided a mechanism for their own amendment.  Article XIII provided that “the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.”

But not all the states complied with Congress’s request that they send delegates to the Grand Convention to negotiate proposed amendments to the Articles of Confederation.  Rhode Island, happy with a system in which it often exercised effective veto-authority despite its miniscule size, flatly refused.  New York sent three (3) delegates, the incomparable Alexander Hamilton (a long-time supporter of amending the Articles to create a viable national government) and two staunch defenders of state autonomy included by George Clinton, New York’s soon-to-be-Anti-federalist Governor, for the all-but-stated purpose of voting against anything Hamilton supported.

So when the Founders met in Philadelphia, they faced a seemingly insoluble puzzle.  They met as delegates of states bound by a “perpetual” confederation amendable only by unanimous action.  They met with the task of proposing amendments sufficient to “render the federal Constitution adequate” to preserve that “perpetual” union.  And one of the states whose unanimous support they needed to amend the Articles sufficiently to preserve the Union had already announced through its refusal to participate that it would support absolutely nothing they suggested.

Article VII was how the Founders cut this Gordian Knot.

They would not abide by the Articles’ rules in proposing a replacement for the Articles.  Knowing that they could not meet the Articles’ requirements, they made up their own.  Rather than allow little Rhode Island’s intransigence to doom the convention (and the Union), they replaced the Articles’ unanimous-consent requirement with Article VII’s rule that the new Constitution would take effect for the ratifying states whenever nine (9) states agreed.

And their rule change was decisive.  As implicitly threatened, Rhode Island voted down the Constitution’s ratification in March 1788.*  Without Article VII, that would have been the end of the Constitution.  Because of Article VII, the ratification process continued, though, and the Constitution won its ninth (9th) and decisive state ratification from New Hampshire on June 21, 1788.  Virginia and New York followed by the end of July.  An election then followed, allowing Washington’s inauguration (along with a new Congress under the Constitution) on April 30, 1789, despite the fact that neither North Carolina nor Rhode Island had yet consented to the new regime.


*          Rhode Island’s version of this history asserts that the state rejected the Constitution because it lacked a Bill of Rights.  This is self-justification masquerading as history and ignores the state’s refusal to send delegates to the Convention at a time when no national government was contemplated and no need for a Bill of Rights even imaginable.  Even the U.S. Archives admits that Rhode Island only narrowly ratified after the ratification of the Bill of Rights when “[f]aced with threatened treatment as a foreign government.”



Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm.  Dan is currently a lawyer in Dallas.


Guest Essayist: Dan Morenoff, Attorney

Article IV, Section 3, Clause 1-2

1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Marge Simpson: “There are only 49 stars on that flag.”
Abe Simpson: “I’ll be deep in the cold, cold ground before I recognize Missouri.”

Abe Simpson got it partly right. Article IV, Section 3 leaves one state Constitutionally suspect; it’s just not Missouri. It also highlights that, under irrevocable actions taken by Congress, there could be 54 states at any time one state chooses.

Congress first admitted states to the Union while Washington was still President. In 1791, it admitted Vermont (a territory previously claimed by both New York and New Hampshire, which had governed itself for 14 years). Within months, it admitted Kentucky (formerly, the disgruntled, Western counties of Virginia).

The pairing indicated the great dividing line in American political life for the next 70 years. Congress admitted the states together to preserve the balance in the Senate between states allowing human slavery and those abhorring it. Also noteworthy, Virginia consented to the independence of Kentucky only after negotiating an interstate compact that Congress contemporaneously approved.*

By 1820, the tradition of admitting states in free and slave pairs (Indiana and Mississippi, Illinois and Alabama) was so engrained that it required the Missouri Compromise. Congress contemporaneously admitted Missouri (formerly a territory) as a slave state and the northern district of Massachusetts as a newly separate, free State of Maine, while drawing a line through the West beyond which slavery would not be allowed in the remaining Federal territories. Unlike the Virginia of 1790, Massachusetts, happy to preserve the balance of power for free states, demanded no concessions from Maine on consenting to the separation.

The events that followed, including the eventual repeal of the Missouri Compromise’s Western-land provisions in 1854, directly precipitated the Civil War.

Notice that, already, Congress had twice exercised the power to carve a state out of another state, with the consent of the severed state’s legislature. During the Civil War, it did again, this time in a Constitutionally suspect manner. After Virginia seceded from the Union, its loyalist, mountain counties seized the chance to free themselves from the richer, more heavily populated lowlands. Deeming the rebellious state legislature in Richmond illegitimate, these counties’ representatives gathered in Wheeling, Virginia (in their midst) and declared themselves the legitimate government of all of Virginia. It was this “loyal” government of Virginia which consented to the carving of the same counties represented within it into the new state of West Virginia.

When the Civil War concluded and Virginia returned to the Union, Virginia’s government predictably challenged the legitimacy of the Wheeling convention’s actions during the war. In 1865, the Virginia General Assembly repealed the Wheeling convention’s act, nominally in Virginia’s name, of consenting to the split. Litigation followed, in which the United States Supreme Court implicitly recognized the Wheeling convention as having spoken both for the seceding counties and for the State of Virginia as a whole, despite the fact that this put the same people on both sides of the table in a negotiation.** Nonetheless, since 1871, West Virginia’s questionable legitimacy has been set aside, apparently in the interest of finality.

Finally, it is worth noting that while no new state has been admitted to the Union since 1959, Congress has bindingly consented to further admissions.

Alone among America’s states, Texas was an independent republic before statehood, which joined the Union not through the usual process of Congressional admission, but through the contemporaneous action of two, equal sovereigns. On February 26, 1845, the U.S. Congress passed a joint resolution offering Texas statehood. Texas then convened an Annexation Convention that approved annexation and submitted an Annexation Ordinance to popular referendum in October 1845. After the people of Texas authorized ascension, both the U.S. House and Senate approved the Annexation Ordinance and President Polk signed it into law on December 29, 1845.

Both the initial U.S. Congressional joint resolution and the Annexation Ordinance included the following provision:

New States of convenient size not exceeding four in number, in addition to said State of Texas and having sufficient population, may, hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the Federal Constitution.

An affirmative part of the deal between sovereigns, enshrined in the law of the United States, was that Texas, at its discretion, may self-divide into up to five (5) states at any time. While Texas has, to date, never exercised this option, it has the legal right, should it so choose, to sub-divide and claim an additional 8 seats in the United States Senate at its pleasure.
* The Compact bore on the preservation of land-titles held on paper by Virginians before Kentucky’s independence. The conflicts that Compact’s terms set in motion between Virginians that had never seen the lands in question but held papers properly filed in Richmond and the frontier woodsmen who settled Kentucky and developed its lands would only be resolved 140 years later through the Kentucky Supreme Court’s resort to legal fiction. Green v. Biddle, 21 U.S. 1 (1823).

** Virginia v. West Virginia, 78 U.S. 39 (1871).

Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm. Dan is currently a lawyer in Dallas, Texas.

Guest Essayist: Dan Morenoff, Attorney

Article 1, Section 9, Clause 7

7:  No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This clause of the Constitution seems utterly unremarkable today.  It reads like an accounting textbook, never hinting at the long history of struggle summed up in the first sixteen (16) words.  Nor do the remaining twenty-two (22) words indicate, on their face, the antiquity of the ethical judgment they imply.  Yet, if you scratch the surface, the Appropriations Clause holds wonders.

For centuries before the Constitution’s ratification, English-speaking legislatures had contended with the executive for control over the power to spend.  Beginning with Runnymeade and the Magna Carta, what would become Parliament had striven to limit the King’s control over money raised and spent.  While religious and commercial differences played a role in the conflict, the English Civil War began as a battle over Parliament’s exercise of independent judgment in refusing to support a King’s call for greater taxes.  By 1689 at the end of the Glorious Revolution, Parliament had written into law through the English Bill of Rights legislative control over the raising of money, asserting “[t]hat levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament … in other manner than the same is or shall be granted, is illegal.”  Parliamentary control over how Kings spent the funds Parliament helped raise began with the insertion of instructional language into a grant of funding in the 14th Century.  While Parliament’s control over spending remained incomplete in the 1780s, English-speaking legislatures had been trying to control how funds they raised were spent for 400 years before the founding.

On the West side of the Atlantic, these efforts were accelerated by the distaste the Colonials often had for the Crown’s appointed Colonial Governors.  So firmly had Colonial legislatures established control over what funds were taxed, borrowed, and spent by Governors that Madison could define the “power of the purse” in the Federalist Papers as the power “to propose the supplies requisite for the support of government” and safely assume that his readers would know exactly what he meant.  Indeed, in Federalist 58, Madison went further, explaining the power, not entirely accurately in terms of British practice, but consistent with the Colonial experience of annual, line-item appropriations, as:

that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activities and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government.  This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining redress of every grievance, and for carrying into effect every just and salutary measure.

The Appropriations Clause wrote this Colonial practice into stone.  In America, no money would leave the treasury without the passage of an appropriations bill passed by Congress.  The intervening centuries under the Constitution have seen further conflict over the contours of the Appropriations Clause – for example, battles over Presidential discretion to “impound” appropriated funds (meaning, to refuse to spend them).  But the bedrock principle of the Appropriations Clause has almost never been called into question.

Ancient as the story hidden within the first half of the Appropriations Clause is, the second half of the clause, that requiring “a regular Statement and Account of the Receipts and Expenditures[,]” has it beat by thousands of years.

The core, ethical requirement of the clause is that any one entrusted by law to spend the people’s money has a duty to show that he has done so as a faithful steward.  That requirement has its roots in the book of Exodus.  Moses himself came back after the construction of the Ark of the Covenant with a report on how the funds raised were actually spent.

The Founders expected their Presidents to be no more ethical people then Moses had been.  Accordingly, they wrote into the Constitution a requirement of the same kind of reporting Moses had provided.

As a result, the clause is one of the clearest examples of biblical influence on the Constitution.

Dan Morenoff is a graduate of Columbia College of Columbia University and of the University of Chicago Law School, who proudly worked on the Legislative Staff of Senator Phil Gramm.  Dan is currently a lawyer in Dallas, Texas.